to do what, apart from such inducement, he would consider to be opposed to his interest, the action seems to be at least of doubtful legitimacy from an individualistic point of view; and cases similar to those above mentioned may easily be found which would be generally disapproved; e.g., if a father were to warn a son that he would lose a legacy if he did not join the Church of Rome, or if an employer were to give notice that he would engage no workmen who declined to take a pledge of abstinence from tobacco. So again, a trader would be widely censured who sold his goods at unremunerative prices in order to drive another trader out of the business. On the whole, we may say that conduct of this kind. lies on the ambiguous margin between what an individualistic code should allow and what it should prevent and that it would not be contrary to the individualistic principle to subject it to legal repression in any special case in which a demonstrably coercive intention. was combined with gravely mischievous results-provided that this special case could be clearly defined and distinguished from other cases. A particular case that is free from difficulty is where the act threatened is one that either ought not to be done at all, or ought to be done with a view to the public benefit;-such as an accusation of crime. The wrongfulness of threatening an act of this kind with a view to private gain, to be obtained by inducing persons whom it might harm to purchase the threatener's silence, is easily recognised and defined. Another case that specially invites the legislator's attention, as specially menacing to the freedom of individuals, is where a number of persons combine to intimidate by threatening acts which, though not illegal apart from their coercive purpose, are demonstrably threatened and carried out for this purpose.1

V. It remains to consider how far the causing of mental annoyance, without demonstrably malevolent intention, is to be regarded as an interference which law ought to prevent. Reflection will at once show that we cannot hope to prevent this with anything like completeness. B may be offended by

1 This case will be further discussed in a subsequent chapter (xxviii.).

the colour of A's dress or the cut of his beard, his movements in public, and the expression of his opinions and sentiments; but it is obvious that the attempt to shield B completely from annoyance thus caused would involve tenfold more vexatious interference with A. And, in fact, in modern civilised communities the only important class of acts that are repressed by legal penalties1 as tending to cause merely mental annoyance-without causing or tending to cause injury or loss in some other way, or reasonable fear of injury --are statements affecting reputation, and these are only prohibited under legal penalties when they either involve misrepresentation of facts or are held to show malevolent intention. In all other cases of offensive and annoying acts prohibited by law, we find at least an indirect tendency to cause a violation of some legal rule that rests on other grounds. Thus indecency is prohibited because the sentiment it offends is indirectly protective of the institution of the family; and I conceive that the primary aim of law in prohibiting blasphemy is not merely to prevent the mental pain it causes to believers in the established religion, but to prevent religious beliefs from being weakened, on account of their importance to social order.

1 The reader will bear in mind that the word "penalty" is throughout this treatise used in a wide sense, to include any loss or inconvenience resulting from the action or inaction of government to the individual who transgresses any legal rule.

2 It should be noticed that in English law it is only written defamation (libel) that incurs legal penalties, without causing any harm beyond ridicule and contempt.

CHAPTER V

ON PROPERTY

§ 1. In the present chapter I propose to consider the main regulations in respect to Property which a consistent legislation on the basis of utilitarian individualism will include. For clearness' sake, it seems best to discuss separately the two distinct questions: (1) What we mean, or ought to mean, by the "Right of Property," considered as actually belonging to any individual: what different elements of legal right secured to the proprietor and corresponding legal obligation imposed on the non-proprietor-the conception includes, or ought to include? and (2) Under what conditions should the whole or any part of these different rights be legally acquired?

In dealing with the first question it will perhaps be most convenient to take the common notion of the "Right of Property" and analyse it into its elements: and, so far as these elementary rights are separable, to observe the different grounds for maintaining them separately or in combination in different cases. For clearness, we will, in the first instance, limit our consideration to property in material things.

We may begin by observing that the most widely extended right secured to members of an orderly community in respect of material things is merely a right to use transiently, to make the material thing a means to the satisfaction of needs and desires, not necessarily combined with any right to exclude another from using the same thing immediately

afterwards, or even at the same time, so far as this second use does not actually impede the first. The obligation corresponding to this right is merely that of not interfering with actual use. And in the case of things of which the utility does not result from human labour, and which can be used simultaneously or successively by an indefinite number of persons, without any considerable amount of mutual interference, it is obvious that there would be a decrease of utility on the whole, if any one person, or group of persons, might claim exclusive use. Thus, if a piece of land is most useful on the whole as an area for common recreation, it is obviously inexpedient to allow it to be appropriated in separate portions for the separate use or enjoyment of particular individuals. Sometimes again, a thing is made. most useful when the right to use it in one particular way is given to one or more persons, while the rest of the utilities derivable from it are secured to others, -as when A owns land, but a right-of-way over his land belongs either to B, a neighbouring owner, or to the world at large.

It is not, however, the mere right of unhampered use which constitutes the most essential element in the Right of Property, as commonly conceived: but the right of exclusive use. This is always implied in the idea of appropriation but the obvious utilitarian grounds for it are different in different cases. Some things such as food-if used at all, can only be used once, and therefore by a single individual : so that the undisturbed use of them is impossible without appropriation. In other cases it is obvious that at any rate the most effective use of the material thing in questioneither for immediate enjoyment or as an instrument or material for producing things directly consumable-requires that the user should have the legal right of excluding other persons from any similar use of the thing, or any action materially affecting its physical condition, at least for a considerable period of time. If a field is to be used for the cultivation of crops it is obviously expedient, even in a primitive condition of agriculture, that it should be under

the exclusive control of one person- -or of a group of persons capable of acting as one-at least during the time. that intervenes between one harvest and another: and as the art of agriculture develops, the requisite period of continuous single control tends to become longer.

More often, however, the ground for legalising the exclusive use of material things does not lie in the fact that the things are thus obviously made more useful, but in the fact that their existence is due to labour spent in producing and guarding, which could not have been expended if the labourer had not been able to count on the exclusive enjoyment of his results: and it is, as we have seen, from this point of view that the right of property is commonly justified by Individualists;-as a stimulus to produce useful things, rather than as a means for making their utility when produced as great as possible. But, whatever its rationale may be, it is this right of excluding all others permanently from any physical dealings with a particular portion of matter, which we have to regard as the most essential element in the Right of Property in material things.

We may observe that in the case of non-exclusive no less than of exclusive use, the protection from interference which law gives to the user may be of an indirect kind. Thus, where the water of a stream is used to turn the wheels of a succession of water-mills in its descent, it would be obviously inexpedient to allow the water to become the property of any of the millowners: but in order to encourage them to make the water useful in this way it is expedient to protect them against a diversion of the course of the stream at any point above their mills. And on similar grounds, the owner of a house is not merely protected against the forcible entry of a stranger, but for the loss of utility caused by the pollution of the surrounding atmosphere. How far such protection of A from indirect interference should be given, where it involves a material restriction on the freedom of action of other persons, can only be settled in any particular case by a careful balance of conflicting inconveniences.